NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

LEONARDO N. DiGIOVANNI, ) ) Appellant, ) ) v. ) Case No. 2D15-4180 ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY f/k/a BANKERS TRUST ) COMPANY OF CALIFORNIA, ) NATIONAL ASSOCIATION, AS ) TRUSTEE FOR VENDEE MORTGAGE ) TRUST 1999-3, UNKNO WN SPOUSE ) OF LEONARDO N. DIGIOVANNI; CITY ) OF CAPE CORAL, FLORIDA, A ) MUNICIPAL CORPORATION; ) UNKNOWN TENANT #1 n/k/a KIM ) MITCHELL; UNKNOWN TENANT #2 ) n/k/a CHARLIE MITCHELL; ) UNKNOWN TENANT #3; UNKNOWN ) TENANT #4; AND OTHER UNKNOWN ) PARTIES, INCLUDING THE ) UNKNOWN SPOUSE OF ANY TITLE ) HOLDER IN POSSESSION OF THE ) PROPERTY; AND, IF A NAMED ) DEFENDANT(S) IS DECEASED, THE ) SURVIVING SPOUSE, HEIRS, ) DEVISEES, GRANTEES, CREDITORS, ) AND ALL OTHER PARTIES CLAIMING ) BY, THROUGH, UNDER OR AGAINST ) THAT DEFENDANT(S); AND THE ) SEVERAL AND RESPECTIVE ) UNKNOWN ASSIGNS , SUCCESSORS ) IN INTEREST, TRUSTEES OR OTHER ) PERSONS CLAIMING BY, THROUGH, ) UNDER OR AGAINST ANY ) CORPORATION OR OTHER LEGAL )- 2 - ENTITY NAMED AS A DEFENDANT(S); ) and ALL CLAIMANTS, PERSONS OR ) PARTIES, NATURAL OR ) CORPORATE, OR WHOSE EXACT ) LEGAL STATUS IS UNKNOWN, ) CLAIMING UNDER ANY OF THE ) ABOVE NAMED OR ) DESCRIBED DEFENDANT(S), ) ) Appellees. ) ___________________________________ ) Opinion filed April 5, 2017. Appeal from the Circuit Court for Lee County; Hugh E. Starnes, Senior Judge. Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant. Mary J. Walter of Liebler, Gonzalez & Portuondo, Miami, for Appellee Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3. No appearance for remaining Appellees.

KHOUZAM, Judge. Leonardo N. DiGiovanni appeals the final judgment of foreclos ure entered against him and in favor of Deutsc he Bank National Trust Compan y f/k/a Bankers Trust Company of California, National Association, as Trustee for Ven dee Mortgage Trust

1999-3. Because Deutsche Bank fa iled to show standing to forec lose, we reverse. On May 3, 2012, Deutsche Bank National Trust Company f/k/a Ba nkers Trust Company of California, National Association, as Trustee f or Vendee Mortgage Trust 1999-3 filed a foreclosure complaint against DiGiovanni s eeking to reestablish a- 3 - lost note. In count one, the complaint alleged that plaintiff or its predecessor was in possession and was entitled to enforce the note when it was los t or destroyed. In count two, the complaint alleged that the note and mortgage had been executed by DiGiovanni on June 21, 1999, and he had failed to make his paym ents since August 1, 2009. Attached to the complaint were copies of the note and mo rtgage, showing that the original lender was U.S. Depa rtment of Veterans Affairs. A lso attached was a copy of an assignment transferring the mortgage from U.S. Department of Veterans Affairs to Bankers Trust Company of Califor nia, N.A., as Trustee for Vende e Mortgage Trust

1999-3. At trial, a mortgage resolution associate from Bank of America, N.A., testified that Bank of America was the servicer of the mortgage . She stated that Bank of America had possession of the note on or about October 29, 1 999, when it was transferred to former foreclosure counsel for a previous forecl osure case. The note was lost in transition back to Bank of America. A copy of the note was admitted into evidence. It bore a specific endorsement to Bankers Trust Comp any of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3 and was dated Octob er 28, 1999. A copy of the assignment transferring the mortgage to Bankers Tru st was admitted, though Deutsche Bank noted that it was not relying on the assig nment. A breach letter and payment history were also admitted. But none of these docu ments showed that Deutsche Bank was formerly Banker s Trust or that Deutsche Bank was the current trustee for Vendee Mortgage Trust 1999-3. Indeed, when the mor tgage resolution associate from Bank of America was specifically asked if she ha d any document to

illustrate that Deutsche Bank Nati onal Trust Company was former ly known as Bankers- 4 - Trust Company of California, she admitted that she did not. Di Giovanni argued that without such a document, Deutsche Bank could not show standing to foreclose. After the defense rested, the judge stated that he needed to ta ke a break to consider the standing issue: "I'm going to go up to my offic e where I can look on my computer and see what I can do." When the judge returned, he m ade clear that the evidence as presented was insuf ficient to establish Deutsche Ba nk's standing. However, he explained that during the break he had run a Google search and found Deutsche Bank's institutional history on the National Informati on Center's 1 website showing that Bankers Trust had been renamed Deutsche Bank in 20 02: [W]ell, there's no documentation, I think I have to rule in favor of the defendant because it's different entity. . . . [T ]he plaintiff normally, of course, has submitted something through the Federal research that actually shows if there's been a change of name or something, and of course I didn't know it was merger, there was no evidence, and [defense counsel] made that clear from his calling [the mortgage resolution associate]. And—but I thought, do I need to consider, in the interest of justice, allowing the plaintiff, i f there is something that is virtually public record, to ask me t o take judicial notice if that's t he only failing. And that's wh ere I came down to, that's the only thing that I think failed in th e plaintiff's proof and so I just thought, you know, if it really is that obvious, something like that, or that clear, I'll Google i t. So I Google Bankers Trust Company of California and I printed out what came up, National Information Center, United States Federal Reserve System, and this is what usually comes up. And I've taken judicial notice in other cases when somebody's submitted something like that . . . . See, I put in Bankers Trust C ompany and this is what came up, institutional history for D eutsche Bank and what it shows . . . Bankers Trust Company of California was renamed

1 The National Information Center is "a central repository of dat a about banks and other institutions for which the Federal Reserve has a supervisory, regulatory, or research interest, including both domestic and f oreign banking organizations operating in the United States." Nat'l Info. Ctr ., NIC Home, https://www.ffiec.gov/nic pubweb/nicweb/NicHome.aspx (last visited Feb. 28, 2017).- 5 - Deutsche Bank National Trust Company. . . . I think that's the type of thing that I should take judicial notice of. Since that's something new, I'll give [defense counsel] a shot at anything he wants to say about that, but it's so obvious that I think I should take notice of it. DiGiovanni pointed out that Deutsche Bank had the burden of pro of, that Deutsche Bank had not presented this document, and that it was improper for the court to do its own investigation. The court the n asked Deutsche Bank, "Do you wish to reopen your case to admit this document?" Deutsche Bank did so, and the do cument was admitted. The judge clarified that he believed that even if the Deutsche Bank had not reopened the case, he could have taken judicial notice sua sponte because it is so straightforward and black and white that it was a change of name that is in the repository of the government, Federal governmental agency whose task it is to keep track of all that and it is a very technical thing to s ay, well, they've said . . . we were formerly Bankers Trust Company and for their suit to fail because they didn't present that, I don't think would really be just. Judgment was entered in favor of Deutsche Bank. DiGiovanni mov ed for rehearing, again raising the objection to the court's independent investig ation and arguing that the case should have been dismissed. The court held a hearing but ultimately denied rehearing, concluding that it was appropriate to take judicial notice of the document under subsections 90.202(5) and (12), Florida Statutes (2014). We conclude that the judge erred in conducting his own independ ent research, prompting Deutsche Bank to reopen the case, and admit ting the document he found into evidence. "Whether intentional or not, the trial ju dge gave the appearance of partiality by taking sua sponte actions which benefitted" one p arty over the other—in this case, Deutsche Bank. Lyles v. State, 742 So. 2d 842, 843 (Fla. 2d DCA 1999). "A- 6 - judge must not independently investigate facts in a case and mu st consider only the evidence presented." Fla. Code of Jud. Conduct, Canon 3B(7), c mt. "[W]hen a judge becomes a participant in judicial proceedings, 'a shadow is cas t upon judicial neutrality,' " particularly when the judge actively seeks the p roduction of evidence that the parties themselves never sought to present. J.F. v. State, 718 So. 2d 251, 252 (Fla. 4th DCA 1998) (quoting Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993)). It is also improper for a court to sua sponte reopen a trial af ter all parties have rested in order to take such additional evidence. See In re T.W., 846 So . 2d 581, 582 (Fla. 2d DCA 2003). A judge should "never suggest or advis e counsel how to try his or her case." Nationstar Mortg., LLC v. Marquez, 180 So. 3d 219, 221 n.2 (Fla. 3d DCA 2015) (citing Shore Mariner Condo. Ass 'n v. Antonious, 722 So. 2d 247 , 248 (Fla. 2d DCA 1998), for the proposition that "[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle"). Here, the parties had rested, and Deutsche Bank had not present ed any evidence to support its assertion that Bankers Trust had been r enamed Deutsche Bank. Deutsche Bank did not present the document in question, did not direct the court's attention to it, and did not ask the court to take judicial not ice of it. The judge independently decided to research the issue, finding the docume nt and providing it to the parties. When DiGiovanni objected, the judge prompted Deut sche Bank to reopen the case to admit the document. The judge made clear that with out the document, he would have dismissed the suit. These actions created, at a min imum, the appearance of partiality.- 7 - Deutsche Bank argues, and the tr ial court believed below, that the document could be appropriately admitted pursuant to section 90 .202, which delineates matters which may be judicially noticed. But "judicial notice applies to self-evident truths that no reasonable person could question, truisms that approach platitudes or banalities." Maradie v. Maradie, 680 So. 2d 538, 541 (Fla. 1st DCA 1996) (quoting Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347-48 (5th Cir. 1982)). Judicial notice may only be taken pursuant to the procedures set forth i n section 90.204. Id. at 540 (reversing in part because the trial court failed to follow the statutory procedure required for judicial notice under section 90.204). And "the p ractice of taking judicial notice of adjudicative facts s hould be exercised with great cau tion" because "the taking of evidence, subject to establis hed safeguards, is the best way to resolve disputes concerning adjudicative facts" and judicially noticed matters a re taken as true without being offered by the party who will ultimately benefit. Id. at 541. Moreover, judicially noticed documents must be otherwise admiss ible. See Dufour v. State, 69 So. 3d 235, 253 (Fla. 2011) ("[T]he fac t that a record may be judicially noticed does not render all that is in the record ad missible."); Stoll v. State, 762 So. 2d 870, 877 (Fla. 2000) ("[W]e find that documents containe d in a court file, even if that entire court file is judici ally noticed, are still subject to the same rules of evidence to

which all evidence must adhere. "). Here, the document was simp ly printed from the

internet. It was never authenticated or shown to fall within a n exception to the rule against hearsay. "Web-sites are not self-authenticating." Nat ionwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 900 (Fla. 5th DCA 2012) (quoting St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 

### No. 8:06-CV-223-T-MSS, 2006 WL 1320242 (M.D. Fla.- 8 - May 12, 2006)). Rather, "[t]o authenticate printouts from a we bsite, the party proffering the evidence must produce 'some statement or affidavit from som eone with knowledge [of the website].' " Id. (latter alteration in original). Deu tsche Bank made no attempt to show that the contents of the printout fell within an exception to the rule against hearsay, such as the business re cord exception or the public re cords exception. See § 90.803(6), (8); see also Whitley v. State, 1 So. 3d 414, 415 (F la. 1st DCA 2009). Accordingly, the internet printout could not be judicially noti ced under the circumstances

of this case. Without any evidence to show that Bankers Trust had been rename d Deutsche Bank, Deutsche Bank failed to show that it had standin g to foreclose. Deutsche Bank needed to prove that it "was entitled to enforce the instrument when loss of possession occurred, or ha[d] directly or indirectly acquire d ownership of the instrument from a person who was entitled to enforce the instru ment when loss of possession occurred." § 673.3091(1)(a), Fla. Stat. (2014). An d because Deutsche Bank sought to show standing through the testimony of a mortgag e resolution associate from the servicer, Bank of Ameri ca, Deutsche Bank was also requ ired to show that Bank of America was holding the note on its behalf. See Phan v . Deutsche Bank Nat'l Trust Co., ex rel. First Franklin Mortg. Loan Trust 2006-FF11, 198 So. 3d 744, 749 (Fla. 2d DCA 2016) ("[W]here an agent holds a mortgage note on behalf of its principal, the principal has constructive possession of the note and standing to file a complaint for foreclosure as a holder."). But the evidence presented only showed that U.S. Department of Veterans Affairs was the original lender; that the note and mor tgage had been- 9 - transferred from U.S. Department of Veterans Affairs to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3; and that Bank of

America was the servicer at the time the note was lost in Octob er of 1999. Aside from the internet printout, there was no evidence presented to show that Bankers Trust had

been renamed Deutsche Bank and that Bank of America was servici ng the loan on behalf of Deutsche Bank as opposed to Bankers Trust. Indeed, t he circuit court repeatedly acknowledged that without the printout, dismissal wa s required. Accordingly,

we reverse and remand with directions for the trial court to en ter an order of involuntary

dismissal.

Reversed and remanded.

VILLANTI, C.J., and CASANUEVA, J., Concur.